Supreme Court pushes for change in Muslim divorce law

The Supreme Court on Tuesday ordered registration of a Public Interest Litigation and urged Chief Justice HL Dattu to set up a Special Bench to consider gender discrimination suffered by Muslim women owing to “arbitrary divorce and second marriage of their husbands during the currency of their first marriage”.

This comes 30 years after the Supreme Court urged the government to frame a uniform civil code to “help in the cause of national integration” in the Shah Bano case.

Issuing notices to Attorney General Mukul Rohatgi and National Legal Services Authority of India, Justices Anil R Dave and Adarsh Kumar Goel sought their reply by November 23 on a question whether “gender discrimination” suffered by Muslim women should not be considered a violation of the Fundamental Rights under Articles 14, 15 and 21 of the Constitution and international covenants.

The verdict, dated October 16, refers to dozens of its own judgments since the 1990s in order to record the Supreme Court’s growing realisation that gender discrimination is a violation of the constitutional rights of women.

Considering the strong pitch made by the SC recently for a common civil code, this judgment is significant as this is the first time that the court itself has shed its self-imposed restraint by suo motu ordering the registration of a PIL.

Even in the 1985 Shah Bano case, the SC had only reminded the government of the lack of “evidence of any official activity for framing a common civil code for the country.” It had said a “common civil code will help in the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies.”

Writing the judgment, Justice Goel said the decision to “consider” the rights of Muslim women came up during discussions with lawyers on gender discrimination at the hearing of a batch of civil appeals on the issue of a daughter’s right to equal shares in ancestral property under the Hindu succession law.

“An important issue of gender discrimination which, though not directly involved in this appeal, has been raised by some of the learned counsel for the parties which concerns rights to Muslim women. Discussions on gender discrimination led to this issue also. It was pointed out that in spite of guarantee of the Constitution, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during the currency of the first marriage, resulting in denial of dignity and security to her,” it said.